*1 Plaintiff-Respondent, Wisconsin, State
v. David G. Straszkowski, Defendant-Appellant-Petitioner.
Supreme Court January argument Oral No. 2006AP64-CR. 19, 2008.
Decided
June
For the the cause was Pray, attorney general, Eileen assistant with whom attorney general. Hollen, on the brief was Van J.B. ¶ 1. SHIRLEY ABRAHAMSON, S. C.J. The defen- unpub- dant, Straszkowski, G. David seeks review of an appeals summarily affirming lished order1 judgment and order of the Circuit Court for Clark County, Judge. upon Counsell, Jon M. Based plea guilty, the circuit court convicted second-degree defendant of sexual assault of a child 948.02(2) (2003-04).2 § contrary Wis. Stat. The cir- post-sentencing cuit court denied the defendant's mo- guilty plea. tion to withdraw his ¶ 2. The on issue review whether circuit denying court erred the defendant's motion with- plea. argues draw his The defendant that he is entitled plea ground plea his on the withdraw that his was knowingly, intelligently, voluntarily.3 not entered Specifically, *4 plea
the defendant contends that his was 1 Straszkowski, State v. 2006AP64-CR, No. unpublished (Wis. 2006). op. 12, slip App. Sept. Ct. 2 All further references to the to Wisconsin Statutes are the 2003-04 version unless otherwise indicated. 3 guilty plea "When a knowing, intelligent, not and voluntary, a plea defendant is entitled the as a withdraw intelligent knowing because he was unaware not and agree- charge plea dismissed but read in under that purposes sentencing the ment is deemed admitted for pled charge to which the defendant defendant on the guilty.4 clearly that the record demon- 3. We conclude counsel, State, neither the nor trial defense
strates that charges the court referred the read-in as nor circuit sentencing purposes for admitted or deemed admitted plea question- purpose. in the or for other Nowhere plea hearing, transcript inor naire, in the sentencing hearing transcript State, did trial counsel, refer to the read-in defense or the circuit court Rather, the admitted or deemed admitted. explicitly at sen- circuit advised the defendant (and tencing repeated postcon- explanation at the this hearing) it understood viction motion admitting charge the read-in and defendant was not charge that the circuit court would consider the read-in purposes on the for defendant pled guilty. circuit the defendant Because the to which charge to the read-in be admitted court did not consider sentencing purposes, that the defen- we conclude guilty plea that his was not dant has failed to show voluntarily knowingly, intelligently, when entered agreement his that he was unaware that he asserts charge read in an admission have a sexual assault was sentencing. purposes of the read-in right plea such a violates fundamental due matter of because Brown, 594, 2d v. 2006 WI 293 Wis. process." State (citation omit quotation internal marks N.W.2d ted). case, that the In does assert present involuntarily. plea was entered into *5 argues defendant further that under Wis- arguably obliga- consin case the circuit an law court had charge tion to deem the read-in admitted the defen- sentencing purposes dant for based on the defendant's agreement charge in, to read that have and because having the defendant was unaware of an made admis- charge sentencing purposes, sion to read-in for he did knowingly intelligently plead guilty to the charged urges sexual assault. The this court to impose duty explicit notify an on a circuit to a guilty plea defendant at the time the a defendant enters agreement that the defendant's to read in a dismissed charge is deemed to be an admission of charge purposes sentencing. Although charges
¶ 5. on case law read-in is proper reading clear, neither consistent nor histoiy of the procedure of Wisconsin's read-in demonstrates component charge that it not a is critical of a read-in (or guilt charge the defendant admit that the agreement to read in the be deemed guilt) purposes sentencing. an admission of sum, In guilt no admission from a defendant for (or deemed) purposes required should be for a read-in sentencing purposes be considered for and prosecuting attorneys, confusion, dismissed. To avoid counsel, defense and circuit courts should hereafter (as case) they terminology avoid did in the instant referring explain- "admit" or "deemed admitted" in ing agreement a defendant's to read in a dismissed charge. A circuit court should advise a defendant that it imposing consider read-in when sentence penalty charged but maximum of offense may require will increased; not be that a circuit court pay charges; defendant to restitution on prohibited prosecution that the State is from future charge. the read-in *6 guilt Although
¶ hold that no admission of 6. we required for read-in offense to be from defendant is a a sentencing purposes, this dismissed and considered accepting a a does not bar circuit court from decision charge. guilt of read-in This of a defendant's admission plea colloquy a not address what duties decision does might respect to an admis- circuit court have with such Our hold- sion, the the defendant raises.5 narrow issue ing guilt required our is not is that an admission of procedure court and that circuit should read-in terminology "admit" or "deemed admitted" avoid the explaining charge referring for sentenc- or to ing except purposes admit the when a defendant does charge. present
¶ does not an award 7. The case involve Nothing opinion con- in this should be for restitution. expanding restricting the circumstances in strued as imposed. which restitution ¶ forth, affirm the 8. For the reasons set we affirming appeals the circuit court of decision denying motion to with- court's order the defendant's guilty plea. his draw
I—f relating briefly ¶ to the 9. summarize the facts We sentencing hearing. agreement plea defendant's agreement to The concurrence concludes sentencing may be deemed in a for consideration at read guilt an of the read-in admission also purposes. Concurring op., 1. The concurrence seems no with plea colloquy has duties conclude that the circuit court although guilt, respect to the defendant's deemed admission of for the circuit opines practice" the "best concurrence Id., to inform the defendant about admission. charged The State the defendant with two involving posses- offenses, sexual assault one offense drug paraphernalia, sion and two worthless check offenses. completed
¶ 11. The defendant stated on a "Plea Rights" Questionnaire/Waiver of form that he intended plead guilty single charge, one sexual assault drug paraphernalia charge, and one worthless check charge. completed Questionnaire/Waiver Plea Rights plea agree- form also stated that the defendant's ment would be set forth circuit court as follows: "Remaining charges and cases to be dismissed; PSI [presentence investigation] jointly requested, par- *7 argue." ties will be free to completed
¶ 12. On the Plea Questionnaire/ Rights placed form, Waiver of a check mark was next explained charges a statement that read-in as follows: Charges part plea agreement that are read in as of the may by imposing be considered the circuit court when penalty; but not will increase the maximum may pay any the defendant have to restitution on charges may prosecute read in; and the State not the any charges. read-in The statement completed Questionnaire/Waiver checked on the Plea of Rights form was as follows:
I any charges understand if part are read-in as of agreement plea they following have the effects: —
(cid:127) Sentencing although judge the may consider charges imposing sentence, read-in when the maxi- penalty mum will not be increased. —
(cid:127) may Restitution I required to pay restitu- on any charges. tion — (cid:127) Future prosecution the pros- State not ecute me for charges. guilty plea, hearing At on the defendant's the attorney open prosecuting the court that stated
the plead guilty charges defendant did which the two then read in." Defense counsel "dismissed and would be Rights of form6 Questionnaire/Waiver filed the Plea guilty of the the circuit court informed possession pleas assault, sexual the drug paraphernalia, check. and issuance a worthless accepted if the court counsel stated that circuit Defense guilty guilty pleas and found the defendant the State would he understood the offenses, three court] [have the circuit consider move dismiss but "to remaining sentencing purposes" assault the sexual charges. check and worthless Immediately counsel made after defense engaged the defendant statement,
this the circuit [that] "promises colloquy were in a to "ascertain" anticipated the defendant's made in connection with "7 regarding plea questioned . the defendant . . and . Rights completed form Questionnaire/Waiver Plea colloquy began signed by follows This the defendant. attorney prosecuting after statements of Judicial Confer adopted form Form CR-227 758.18(1). §§ 971.025 and pursuant ence to Wis. Stat. plea hearing, [circuit] court "During course of a *8 (2) personally and... Ascertain must address the with the in connection any promises... were made whether Brown, plea...." anticipated 246, 262, 389 Bangert, v. Wis. 2d N.W.2d (citing State (1986)). SM-32, repeatedly has been cited which WIS JI —Criminal urged has and this court by this court which approval with put follow, agreement, a plea "If circuit states: there courts understanding of the defendant's it on the record and establish agreement." describing plea agreement defense counsel charges: THE Straszkowski, your COURT: Mr. is that under- standing today? is happening what here DEFENDANT: Yes.
THE your attorney given COURT: And has plea me a questionnaire rights you waiver form. Have reviewed that form?
DEFENDANT: Yes. you THE And COURT: have it? through read Yes. DEFENDANT:
THE you you COURT: Do believe understand its contents?
DEFENDANT: Yes.
THE It appears you signed COURT: it on the page. second Is correct?
DEFENDANT: Yes.
THE COURT: You did today? that earlier DEFENDANT: Yes. Any
THE questions COURT: about the form or the being today? recommendations made here DEFENDANT: No. you
THE says COURT: And the form haven't had alcohol, medications, drugs in the last 24 Is hours. that correct?
DEFENDANT: Yes. *9 you cause to be that would Anything else THE COURT: making these decisions you are or unclear confused today? No.
DEFENDANT: to discuss any more time you Did need THE COURT: your lawyer? with this No.
DEFENDANT: hearing, during plea the defen- the 15. Later charges guilty pled in accordance with three to the dant agreement. the plea court convicted The circuit the defendant to which of the three defendant remaining offense pled guilty sexual that the and stated charge dismissed "are check and worthless sentencing purposes consideration read in for be."8 if need restitution hearing, sentencing counsel defense At the his innocence maintained defendant that the
stated charge. De- assault read-in sexual the dismissed but he confident that he was asserted also fense counsel proven of that innocent defendant could have gone trial. matter had the "[t]here acknowledged circuit court 17. The regard [sic] read-in" and to the with denials is some dispute" over be some considerable seems to "there charge and assault sexual the dismissed Although both read in for sentenc charge were check worthless dismissed court's challenge the circuit did not defendant ing purposes, There is no charge. check worthless dismissed read-in of the considered the the circuit record that in the evidence defen charge when check dismissed worthless dant. similarly his chal- limits court,
Before this sexual the dismissed read-in of court's the circuit lenge charge. assault
charges pending county. in another The circuit court charge charges never considered the read-in or the county9 another "admitted" but considered these charges during sentencing as an indication that placing questionable defendant was himself in situa- involving underage girls. tions explained 18. The circuit court that the read-in charge charges pending and county in the other weighed in favor of confinement because the conduct underlying charge alleged each was to have occurred after the defendant had been made aware of the sexual charge pled guilty. offense to which the defendant had The charge circuit court concluded that the read-in demonstrated that even after he had been made aware charge, of the initial sexual assault the defendant place questionable "continued to himself in a situation types allegations where those could be made." ¶ 19. The circuit court sentenced the defendant to years' years' five super- confinement and ten extended charge. vision on the sexual assault The circuit court drug also paraphernalia sentenced the defendant on the charges provided and worthless check but that defendant charges would serve his sentence on those concurrently with his sentence on the sexual assault charge. presentence report jail recommended probation. Restitution was not claimed or awarded on the sexual assault offense. sentencing, 20. After the defendant moved to guilty pleas, arguing
withdraw his that he did not make pleas knowingly intelligently. those In motion, his pleas, the defendant stated that when he entered his he "was not charge aware of what it meant for a to be
9 The record indicates that each of these was later dismissed. pursuant unaware that to case that he "was
read-in" by [the] admitted read-in offense deemed law, also The motion stated defendant." consistently he was innocent of maintained that had assault and that if he had the dismissed sexual underlying allegations were known "going the time of sentenc- to be considered true at pleas." [the defendant] ing, would not have entered his hearing postconviction At on the plea, the his defendant's motion withdraw agreed that he never informed the trial counsel had *11 charges that the read-in "would be deemed defendant sentencing" [circuit] purposes for or that "the admitted [the defendant] committed" the court would ... conclude charge. alleged underlying the offense read-in ¶ 22. counsel testified that he The defendant's trial talking "spent quite had a bit of time and the defendant only charge, but also the effect not the read-in about facing fact that he unrelated conduct another the was county." it Counsel testified that he believed doubtful convicted of the that the defendant would have been defendant consis- sexual offense that the read-in tently charge. denied The defendant's trial explained that he had to the counsel further testified although not be that defendant would separately but for the dismissed convicted sentenced charge, "might circuit court sexual assault imposing on the that conduct when sentence consider pleading guilty trial that to." Defense assault he was "still he at the time and also stated that believed counsel [the defendant] today believe[s] understood that that although convicting judge, him of other he wasn't certainly when assault, he consider assault would pun- required [the defendant] trying for to decide what protection." public required ishment what postconviction 23. The defendant testified at the hearing that he did not understand that the circuit court charge would read in the dismissed sexual assault or that charge purposes the circuit court could consider the charge the defendant on the to which the pled guilty. acknowledged defendant had The defendant significance that he had discussed the of read-in with his trial counsel on at least two occasions. The acknowledged defendant also that he heard it stated at plea hearing that the dismissed sexual assault sentencing purposes. would be considered for The defen- upon hearing dant "thought they testified that this statement he plea agree- made a mistake," because his "nothing [a] ment said about read-in." The defendant plea hearing further testified that at the he asked his "[W]hy they saying counsel, trial are read-in?" and that replied they his counsel "would talk about it later." Upon completion hearing on the plea motion, withdrawal the circuit court testimony found the defendant's trial counsel's to be testimony credible and the defendant's to be incredible. The circuit court found that the defendant had under- guilty plea stood at the time of his that the dismissed sexual assault would be read in and that it could sentencing. be considered at *12 ¶ 25. The circuit court denied the guilty pleas. motion to withdraw his The circuit court explained that it had not looked to the read-in or charges pending county things in the other "as that definitively happened," but rather that the circuit court "looking [the defendant] was at those matters as con- tinually placing himself in a situation where he is associating underage persons sufficiently with that they know who he is and for some reason would make types allegations against these of him." The circuit court further asserted that it had looked at the read-in
272 county charges pending in "in the other and way." the same appeals summarily affirmed the 26. The court judgment denying of conviction and order
circuit court's guilty plea. his In the defendant's motion to withdraw so applied prior doing, appeals its decision the court of App Lackershire, 609, 2d 265, v. 2005 WI 288 Wis. State appeals held that 891, 707 N.W.2d which "[bjecause range punish read-ins do not increase the consequences they indirect and their knowl ment, are knowing, edge required is not for a defendant to enter intelligent, voluntary plea."10Upon or review of Lacker- adopt explicitly shire, that it did "not this court declared [in appeals' Lackershire, the court of determinations charges merely 609] are collat 288 Wis. 2d that read-in consequences plea, eral of a and that therefore infor prerequisite entering not a mation about read-ins is knowing intelligent plea."11 The Lackershire and analysis engage regarding "to in further court declined obligation explain the nature of the circuit court's the record demon read-in offenses in a case where charges not treated as that the dismissed were strates sentencing."12 plea This court's read-ins at either appeals' determinations full discussion of the court Lackershire is as follows: determinations adopt appeals' do not the court of
We merely are "collateral conse- therefore information quences" plea, of a 10 Lackershire, 15, 265, App v. 2005 WI State (footnote omitted). 609, 707 N.W.2d Lackershire, n.8, 2d 301 Wis. State v. 2007 WI (citation quotation internal marks 734 N.W.2d omitted).
12Id *13 prerequisite entering
about "is not a read-ins Lackershire, knowing intelligent 2d plea." 288 Wis. 609, 15, (citing Byrge, 707 N.W.2d891 State v. 477). WI 101, 237 Wis. 2d 614 N.W.2d Those appear existing determinations to extend law. See Aus (1971) State, 727, 734, tin v. 183 N.W.2d56 (stating plea agreement always "[a] should made a matter of record whether it a recom involves sentencing, charge, mendation of a reduced a nolle prosequi charges agreement or read ins with an State, immunity."); 62, 77, v. 2d Garski 75 Wis. (1977) (providing "[t]he N.W.2d court, record, should be advised the trial on the ..."). engage the effect of the read-ins. We decline to analysis regarding further obligation the circuit court's explain the nature of read-in offenses in a case where record demonstrates that the dismissed were not treated plea as read-ins at either the sentencing.13 court, 27. Before this the defendant does not
dispute finding the circuit court's that the defendant plea understood at the time of his that the dismissed charge sexual assault would be read in and that the sentencing. could be considered at The defen- argument dant instead limits his claim that he did not understand that the read-in was to be sentencing purposes. deemed admitted for
HHHH ¶ 28. turnWe first to the standard of review. guilty plea Because the defendant seeks to withdraw his sentencing, after he must show that a refusal to allow plea injus- withdrawal of the would result in manifest 13Id. *14 injustice may be
tice.14 Manifest shown when the guilty plea knowingly, was not made intel- ligently, voluntarily.15 and plea knowingly,
¶ 29. made Whether was intel- ligently, voluntarily question and ais of constitutional Upon upholds review, fact.16 this court the circuit findings evidentiary court's or historical facts unless findings clearly those are erroneous. This court deter- application principles mines the garding of constitutional re- knowing, intelligent voluntary plea evidentiary independently those facts of the circuit appeals benefiting court and court of but from those analyses.17 courts'
¡I— hH I—I ¶ 30. The defendant claims that he did not under- by agreeing charge stand that to have the sexual assault admitting in, read he was or would be deemed to have sentencing purposes.18 admitted the read-in 14 Thomas, WI 13, 16, 714, State v. 2d ¶ N.W.2d 836. 15Brown, 18. 16Lackershire, 2d 301 Wis. 17Id accept the defendant's assertion that he did not We agreement to have the sexual assault understand his sentencing purposes to be an read in and considered for charge. guilty that he was of the read-in Trial defense admission acknowledged hearing that he did postconviction counsel at the agreement the read-in to the defendant as consti explain not acknowledged tuting guilt an admission of and further consistently guilty denied that he was of the read-in made charge. The record also shows that the defendant never that his failure to understand He asserts of sentenc- an admission for purposes read-in involved and not intel- knowing his guilty plea renders ing ligent. contends that his The defendant apparently for the knowingly intelligently not entered was
plea reasons: following
(A) the circuit The defendant was unaware that charge dismissed deem the sexual assault court would *15 plea agreement to be but read in under the sentencing purposes; by the defendant for admitted (B) guilt defendant did not admit of the read-in charge actively guilt denied of the read-in but instead charge;
(C) required to advise the The circuit court was charge the read-in was to be deemed defendant that sentencing purposes; admitted for (D) required under State v. The circuit was 246, 270-72, Bangert, 131 2d 389 N.W.2d defendant understood that ascertain whether the charge waiving he admitting guilt of the read-in was rights respect with to that several constitutional charge; and
(E) failed to advise the defen- Trial defense counsel in, charge the defendant is dant that when a is read admitting guilt charge purposes of the read-in sentencing guilt have admitted or is deemed to purposes sentencing, and therefore under statement, statement, agreed any suggesting that the actually the defendant had charge was an offense that Furthermore, sentencing hearing the defen- committed. at the stated, counsel, of the through dant his that he was innocent charge. NelsonIBentley19 analysis the defendant demon- has guilty plea knowingly his was not entered strated that intelligently regardless plea of whether the court's colloquy was defective.
A argument plea ¶ 32. The defendant's that his was knowingly intelligently not entered because he was unaware that the circuit court would deem the read-in charge sexual assault to be admitted for purposes unconvincing. Nowhere did the circuit court (or conclude that the defendant admitted was deemed admitted) sexual to have assault that was guilty read in or that the defendant of the read-in was charge. sexual assault
¶ 33. The circuit court never deemed the read-in sexual assault to be admitted. The record dem- State, onstrates that neither nor trial defense counsel, nor the circuit court referred to the read-in charges as admitted or deemed admitted. Nowhere plea questionnaire, transcript plea in the of the hearing, transcript sentencing hearing or in the State, did the the circuit court refer defense counsel or *16 to the read-in as admitted or deemed admitted. acknowledged "[t]here ¶ 34. The circuit court that regard [sic] some denials with to the read-in" and that dispute" "there seems to be considerable over the county. charges pending in another The circuit court (and sentencing explicitly advised the defendant at explanation postconviction repeated at the hear- this ing) it that understood that defendant was not admitting charge. the read-in
19 Howell, 75, 350, State v. 2, 2d 2007 WI 301 Wis. 734 Bentley, 201 48; 303, State v. 2d N.W.2d 50 N.W.2d Wis. 548 (1972). State, v. (1996); 489, Nelson 54 2d 195 629 N.W.2d charge court treated the read-in 35. The circuit properly, offense not as an admitted crime but as an may properly sentencing pur- be considered poses. charge
¶ 36. The circuit court treated the read-in way in the same it treated the sexual assault against county pending defendant another and give charge weight gave did not the read-in more than it pending charges county. the other It is well sentencing may "[a] established that consider uncharged unproven offenses" whether or not the having charge defendant in.20 consents to read ¶ 37. The circuit court's consideration of the charge when the defendant did not only agreement parties' flow from the to read sentencing purposes. sexual assault circuit court treated the read-in in the same manner as pending charges unproven it treated other offenses. present ¶ 38. Under the circumstances required case, the circuit court was not to advise the the read-in would deemed Leitner, 449, State v. 2d WI 253 Wis. N.W.2d McQuay, 116, 126, See also State v. 154 Wis. 2d 452 N.W.2d (1990) ("Evidence unproven involving the defen offenses purpose
dant
be considered
the court for" the
"determining the character of the defendant
the need for
rehabilitation.");
State,
his incarceration and
Elias v.
(1980) ("[T]he
278, 284,
imposing
The defendant also that the circuit court acknowledged guilt the defendant denied of the read-in charge, weighing the court identified this denial as a factor punishment. appears favor of more severe The defendant acknowledg- suggest relationship between the circuit court's regard some denials with to the "[t]here [sic] ment immediately preceding read-in" the court's discussion of the "blame-shifting defendant's issues." The record does not bear out the defendant's claim. did transcript is clear that the circuit court not adduce regard the read-in protestation defendant's of innocence blame-shifting. discussing In as an instance issues, blame-shifting presen- the court cited the attempt- the defendant for investigation, tence which criticized responsibility to the victim of the ing to shift moral blame and pled guilty. The circuit sexual assault to which the blame-shifting very clearly regarded the court's discussion of responsibility for the con- accept defendant's failure to moral *18 admitted) charge, the read-in deemed to have argument plea not entered that his was defendant's voluntarily knowingly, intelligently, and because he was deem the read-in the circuit court would unaware that charge to be admitted for sexual assault unconvincing. purposes is
B guilt The defendant is correct that he denied charge. Indeed, the circuit court acknowl- of the read-in actively guilt edged denied that the defendant charge charge and did not admit the read-in for any purpose. The circuit court never characterized the having having admitted or as been deemed defendant as charge any purpose. for to have admitted the read-in circumstances, Under these the defendant's assertion guilt not a that he denied of the read-in guilty plea persuasive argument that not en- his was intelligently. knowingly tered
C appears argue ¶ 41. The defendant to required to advise him that the read-in circuit court was sentencing pur deemed admitted for was argument: poses. Two cases are relevant to this Garski (1977); State, 62, 77, v. 2d 248 N.W.2d425 (Ct. App. Cleaves, v. 2d 510 N.W.2d143 State 181Wis. 1993). argued Garski, In the defendant that "the informed him that it could order
trial court never probation as a condition of on . . . dismissed restitution conviction, duct resulted in the defendant's charges guilt failure to admit of which defendant was not convicted. ,"22
[read-in]
. . .
The Garski court nevertheless
upheld the circuit court's order of restitution as a
probation
condition
charges.
on the dismissed read-in
The Garski court concluded that the trial court had to
statutory penalties
inform the defendant of the
for the
charged
authority
offenses but that Garski had no
argument
his
that the trial court must inform him that
probation
restitution could be a condition of
prior
accepting guilty plea
read-in offenses
*19
¶ 43. The Garski court "cautioned," however, that
plea agreement contemplates
"when the
the non-
prosecution
uncharged
of
offenses, the details of the
plea agreement should be made a matter of record"24
"[t]he
by
and that
defendant should be advised
the trial
court, on the record, of the effect
read-ins,
including
judge may
that the
take these offenses into
sentencing."25
consideration when
The Garski court did
regarding
not state whether this caution
how the trial
court
should advise a defendant about read-in
good practice
was a
require-
recommendation of
or a
knowing, intelligent,
voluntary plea.26
ment for a
State,
Garski v.
(1977).
62, 75,
75 Wis. 2d
25 Garski,
26Id. at 73-74. Garski's caution was based on a similar
State,
Austin v.
caution in
727, 734,
The Garski court did a read-in a a defendant that caution trial court advise guilt an of to the read-in involves or entails admission offense. Cleaves, case, 44. restitution In another "suggested]," require, appeals but did not
court if there an admission "ask the defendant is trial courts sentencing charge purposes for consid- to the read-in appeals that it stated eration."27 The Cleaves court practice."28 "believe[d] is that this the better is not clear that trial court Cleaves makes required is to a defendant that to advise purposes. light sentencing In be deemed admitted ambiguous Cleaves, must be the Garski precatory, "caution" court's respect circuit as at with to the read least obligation a read-in the defendant that court's charge advise sentencing purposes. deemed admitted for to be previously, Moreover, stated the circuit we present case dismissed never considered the charges in another or the sexual assault county the defendant or to have been "admitted" have been deemed admitted for *20 purpose. precatory caution and other Even Garski's practice not seem Cleaves'srecommendation of better do apply present case, the charge court did when circuit been not consider the dismissed read-in to have deemed admitted the defendant or have been admitted.
¶ not 47. the circuit court was We conclude that required in the instant case under either Garski 27 (Ct. Cleaves, n.1, App. 2d 510 143 181 Wis. at 80 N.W.2d 1993).
28 Id.
282 charge advise the Cleaves to defendant that the read-in sentencing purposes. was to be deemed admitted for D ¶ The 48. defendant asserts that he is because deemed to have admitted a read-in offense when a charge plea agreement, read-in is involved a circuit court should have treated admission to a charge guilty equivalent plea read-in to a to the engaged plea and should have in a colloquy guilty plea Bangert, for the under v. State 131 (1977). 246, Wis. 2d N.W.2d The defendant engage further asserts that the circuit did not colloquy present such a case; the defendant prima Bangert; therefore established a facie violation of prima and that the State did rebut the defendant's facie case.29 Bangert,
¶ accepting Under 49. a circuit court a guilty plea required person- to address the defendant ally subjects. engage colloquy and to in a on numerous Among things, required other the court is to establish understanding the defendant's of the nature of the crime, to ascertain a whether factual basis exists to support guilty plea, and to inform the defendant of rights by plea the constitutional are waived verify giving up that the defendant understands he is rights.30 these argues that inasmuch as a sentencing pur- is deemed admitted for alleged plea colloquy Whether deficiencies in the estab mandatory
lish a plea violation the circuit court's duties at hearing question independently is a of law that we review appeals benefiting circuit court and court of from those but analyses. Brown, courts' 2d 293 Wis. 30 Brown, (citations omitted). Wis. 2d
283 required poses, to to adhere circuit court was the Bangert he was to the defendant and advise charge, regard waiving, Sixth the the to read-in right jury Amendment trial, a the Sixth Amendment to right Amend- the Fifth accusers, one's to confront ' against right ment self-incrimination. Bangert disagree
¶ 51. We with the present argument the circuit court in the case. Because having the either been did not view having by to or as been deemed admitted sentencing by or admitted the defendant have been purpose, has the defendant no basis other argue engaged in a court have that the circuit should plea colloquy explaining Bangert of an full admission/guilty effect
plea charge. sentencing as- Rather, the circuit court at using all sessed the defendant's character the available including assault information, charge the read-in sexual charges other the sexual assault in the county. not constrained was by considering the read-in or the other by Bangert plea colloquy rules of rules of a govern guilt phase in the evidence that evidence proceeding.31 criminal ("In Leitner, 449, Wisconsin, sentencing obliged knowledge the full the character acquire
courts are impos pattern and behavior of the convicted defendant before sentence.") omitted); State v. ing (quotation marks and citation 53, Arredondo, WI 2d 674 N.W.2d App 269 Wis. "well-recognized is a distinction (explaining there guilt stage, where the between the fact-finder's function at the government proved must determine whether the has fact-finder doubt, beyond guilt and the sentenc a defendant's reasonable role, ing which to assess defendant's character judge's information, rules of using all unconstrained available
E Using analysis, Nelson/Bentley ¶ 53. the defen- argues guilty plea knowingly dant that his was made not intelligently assuming even that the circuit court duty during plea colloquy had no to him inform the that charge the sexual assault would be deemed sentencing purposes. admitted for The defendant relies acknowledged on the fact that trial counsel his at the postconviction hearing that he did not inform the defen- that dant the defendant would be deemed to have charge. the admitted read-in sexual assault The defen- argues understanding regarding dant that his lack of aspect procedure "admission" of the read-in was vital to ability plea his to make a reasoned decision. Nelson/Bentley argument
¶ 54. The defendant's primarily fallacy rests on the that the circuit court sentenced the defendant based on offenses, conviction of two sexual the one to which he pled guilty and the one that was in. read The record thing, shows that the circuit court did no such as we explained previously. argument have The defendant's setting that he would better have been off the read-in charge for trial because he he believed would be acquitted makes little sense. The defendant deny guilt instant case was able to of the offense and was able to have the read-in offense possibility prosecu- dismissed without of further tion. The circuit court viewed the read-in sexual charge way assault in the same as it viewed sexual county. charged assault offenses in the other govern guilt-phase proceeding.") evidence that of a criminal (citation (Rule) 911.01(4)(c) omitted); § (providing Wis. Stat. that inapplicable the rules of evidence are proceedings). has not carried his burden to 55. The defendant plea colloquy prove ren- to the factors extrinsic intelligent.32 unknowing plea guilty his dered argu- the defendant's 56. We have considered by agreeing did not understand ments that he in, he assault read was admit- have ting sexual the read-in deemed have admitted or would be sentencing purposes. His that his assertion *23 the read-in involved an to understand that failure sentencing guilty purposes renders his for admission knowing intelligent persuasive. plea is and not not circuit never con- that because the court We conclude charge or admit- read-in admitted deemed sidered the purposes charge to on the which ted for guilty, pled has failed to show defendant the defendant knowingly plea and intelli- his not entered that gently. was IV argues that under 57. The defendant further arguably had an Wisconsin case law circuit charge having obligation been consider to sentencing purposes by the defendant for admitted having deemed have been admitted been sentencing purposes, defendant and because having an defendant was unaware of made admis- sentencing purposes, he sion to the read-in 32 challenge Nelson/Bentley In a argument, a inadequacies plea of the guilty plea based not on the a is colloquy. colloquy, plea on extrinsic to the At but instead factors hearing, the defendant has the non-Bangert postconviction a prove by convincing clear and evidence that his or her burden to knowingly, intelligently, voluntarily. and plea was not entered 379, 2d Hampton, 274 62-63. Wis. ¶¶
286
knowingly
intelligently
guilty
plead
did not
to the
charged
urges
sexual
assault.
defendant
this court
duty
impose
explicit
notify
an
on a
circuit court to
guilty plea
at
the time
defendant enters a
purposes
that read-in
are deemed admitted for
sentencing.
Although
charges33
¶ 58.
the case law on read-in
proper reading
neither
clear,
consistent nor
history
procedure
of -Wisconsin'sread-in
demonstrates
component
that it is not a critical
of a
33We use the
"read-in charge" interchangeably
term
with
the terms "read-in offense" and "read-in crime." Our decisions
traditionally
charges"
have referred both to "read-in
drawing
"read-in offenses" without
a distinction between these
Lackershire,
74,
418,
two terms. See
2007 WI
301 Wis. 2d
734
23;
Martel,
70,
483,
N.W.2d
State v.
2003 WI
262 Wis. 2d
69;
Allis,
City
126,
N.W.2d
Robinson v.
West
2000 WI
595,
692;
2d
14,
Wis.
v. Floyd,
N.W.2d
State
2000 WI
767,
155;
R.W.S.,
2d
In
606 N.W.2d
Interest
162 Wis. 2d
(1991);
State,
that the defendant admit to a read-in charge) guilt to the read-in for deemed have admitted sentencing. guilt purposes sum, In no of admission deemed) (or required is should be from defendant sentencing pur- charge to be a read-in considered poses and to be dismissed. history begin
¶ 59. our examination of the We charges in this read-in state with this court's first procedure description of extensive Wisconsin's (1971). State, 727, in Austin 49 Wis. 2d v. 183 N.W.2d validity Austin, In court considered the this plea agreement attorney the district of agreed which prosecute uncharged if
"not to offenses uncharged agree in' defendant to a 'read of these would offenses and to allow the court to take such offenses charged sentencing him into consideration on the agreement plea valid. offense."34The court held the uncharged "the 61. Because so-called 'read in' of purpose crimes for the charged on the crime unique [was] Wisconsin," somewhat prefaced analysis Austin court its with "a brief review" procedure, along an accom- of Wisconsin's read-in with (and intertwined) panying problems discussion of "the multiple involved in the consolidation of offenses and problems application involved in the of the recidi- vist statute."35 procedure
¶ 62. the read-in Austin described uncharged referring admitting to the defendant as "[u]nder explained our offenses. The Austin court procedure, any plead does and therefore not sentenced on (1971). State, Austin v. 183 N.W.2d *25 35Id. charges uncharged but such admitted offenses sentencing charged are in him considered on the of- fense."36 opinion explicitly
¶ 63. The Austin does not state by that such admission is an actual admission made or, hold, some cases would later an admis- simply sion that the court assumes to be made as a agreement matter of law based on the defendant's sentencing. read for consideration at indicate, facts of Austin however, that the read-in procedure opinion described involved the guilt. defendant's actual admission of In its brief in represented Austin, the State asserted that "defendant, by participation counsel, admitted his in an additional robbery occurring armed at a Clark Service Station Milwaukee on the same date."
¶ 64. Furthermore, Austin identified Pulaski v.
(1964),
State,
37 Id. at 730. *26 testimony participated. all, In ... had
the defendant burglaries 24 admitted taken on was defen- dantC'38 compared Finally, and contrasted
¶ 65. Austin procedure procedure described to a Wisconsin's Penal Code under Institute Model in the American Law may open court the admit "the defendant which [uncharged] that felonies and ask other commission of charged they for a into account" at be taken explained that the Model The Austin court offense.39 procedure to Wisconsin's was similar Penal Code State, 138, 139-40, 126 N.W.2d Pulaski v. added). (1964) (emphasis demanded that Pulaski stated that the court
Pulaski's brief involving uncharged open disclosure" provide "full and in each facing "the maximum sentence in order to avoid offenses further asserted consecutively."The State's brief Pulaski case uncharged involvement" in the Pulaski had "admitted his burglaries police. to the added). Austin, (emphasis 2d at 733 49 Wis. court, the Model Penal Code
According to the Austin provided as follows: open has that other crimes admitted
When the defendant
asked
taken into account when he is sentenced and
Court
court he
prosecu-
rejected
request, the sentence shall bar the
has not
such
in this state for
such
or conviction of the defendant
tion
crime.
admitted
Code,
Austin,
(quoting
n.2
Model Penal
2d at 732
added).
7.05(4)) (emphasis
§
7.03(4) (1985) provides
§
that a court
Model Penal Code
impris-
term of
may
a convicted felon to an extended
sentence
multiple offender
the defendant "is a
onment if it finds that
impris-
criminality
extensive that a sentence
was so
whose
7.03(4)
extended term is warranted." Section
onment
an
not make such a
additionally provides obtain, including the condition
conditions
finding unless certain
procedure
[for
charged
in that "the sentence
offense]
prosecution
[but
bars the
of such admitted
uncharged] crime" and different from the Model Penal
procedure
procedure
Code
in that the Code
"works like
repeater
permitting
statute,"
the Wisconsin
the trial
ordinary
court to "extend the term of the
maximum
penalty
charged by taking
*27
for the crime
into account
the other offenses."40The Austin court did not state
procedure
whether Wisconsin's read-in
differed from
(or
as)
procedure
was the same
the Model Penal Code
in
involving
guilt
any
a defendant's actual admission of
uncharged
sentencing purposes.
crime
in
read
appears
sum,
In
Austin
to describe a read-in
procedure
involving
as
the defendant's actual admission
guilt
charge.
to the read-in
The court
in
"cautioned"
plea agreement contemplates
Austin that "when the
nonprosecution
uncharged
offenses the details of the
plea agreement should be
amade matter of the record."41
early
Gerard,
67. Another
case,
State v.
(1973), similarly
57
2d 611,
Model Penal Code establishes a similar procedure for convicted misdemeanants.
40 Austin, 2dWis.
at 733.
41 Id. at 734.
Gerard,
State v.
611, 614,
2dWis.
enforcement uncharged made The court was aware crimes.43 validity inquired as defendant's admission uncharged court read in the admission when the excerpt quoted from an offenses.44 Gerard reading part transcript as follows: the circuit court forward. THE Have the defendant walk COURT: Gerard, you admit all those other said Ronald did freely voluntarily? to the officers [read-in] offenses Yes. DEFENDANT: any promises threats or
THE COURT: Were by any by anyone, any police officer or law made anyone in this case enforcement officer or involved any manner, shape get you form to to admit those offenses?
THE No. DEFENDANT: you them? Why THE COURT: did admit *28 every- get THE Because I wanted to DEFENDANT: thing any I not more involved in off the books so am anything.45
¶ that a 68. Neither Austin nor Gerard stated required defendant's admission is under Wisconsin's Although describing procedure. Wisconsin's read-in involving procedure the defendant's admis- as guilt, opinion question the neither addresses sion of accepting err in a read-in whether circuit court would agreement the admission in the absence of defendant's guilt. and not words, In other Austin Gerard do of
43Id. at 620. 44Id.
45Id. at 620.
question
admission
whether
address
necessary component
guilt
of the Wisconsin
is a
of
procedure.
as Austin and
In contrast
to cases such
69.
subsequent
Gerard,
describe the defendant's
cases
some
an actual admis-
of a read-in
not as
admission
guilt
an admission as a matter
but rather as
sion
simply by agreeing to
the defendant makes
law that
charge.
is
The first of these cases
read in a dismissed
Szarkowitz,
2d
Szarkowitz's ordering that were read restitution to victims crimes plea agreement.46 part In inter- in as preting of Szarkowitz's appeals statute, the court of the restitution provision a circuit statute's that concluded make restitution order the defendant to "any the court to order crime" authorized victim of the any crimes to which to "victims of restitution procedure part as of the read-in admits as particular he is crime which well victims convicted."47 quoted, holding, appeals court of In so interpreted upon, Austin's statement
relied " '[ujnder procedure, does not the defendant our read-in any charges plead on sentenced therefore uncharged such admitted of the read-in but *29 Szarkowitz, 743, 740, 2d N.W.2d 819 v. 460 State 157 Wis. 1990). (Ct. App.
47 Id. at in
offenses are considered him on the "48 charged appeals offense.' The court of construed this statement in mean Austin to that "when a defendant agrees being sentencing, in to crimes read at the time he makes an admission that he committed those crimes."49 appeals
¶ 72. The Szarkowitz court of
did not
explicitly
construing
state
it
whether
was
Austin to
agrees
being
hold that "when a defendant
to crimes
read
sentencing,
part
at
[,
the time of
he makes as
of that
procedure,
actual]
an
admission that he committed
construing
crimes"
it
those
or whether
was instead
agrees
Austin to hold that "when defendant
to crimes
being
sentencing,
legally
[is
read
at the time of
he
to] make[]
deemed
an admission that he committed
[even
those crimes
sion]."
in the absence of an actual admis-
interpretations
permitted
Both
of Szarkowitz are
opinion.
the text of that
appeals adopted
¶ 73. The
the latter
interpretation
Cleaves,
of Szarkowitz in State v.
(Ct.
1993).
App.
2dWis.
49Szarkowitz, at *30 being purposes of considered at sen- for admits them appeals tencing."50 further concluded that The of court object in Cleaves "did not to the the defendant because being in, he admitted them."51 crimes read holding Although circuit court that 74. "may" admits of read-in assume that the defendant sentencing, charges purposes court of the Cleaves for expressly courts ask circuit instead recommended that read-in is an admission to the whether there defendants charge sentencing. majority purposes Cleaves for suggest "[t]o clarify the ... we that that record declared defendant if there is an trial in the future ask the courts charge purposes for of sentenc- admission to the read-in ing that is the better consideration. We believe this practice."52 Judge Writing Cleaves, concurrence majority's upon the
Nettesheim endorsed and elaborated expressly suggestion obtain an "that the trial court charge."53 a read-in defendant to admission from the charge explained Judge is that a read-in Nettesheim (1) usually accompanied conditions: the defen- three uncharged acknowledges responsibility or for the dant (2) agrees charge; dismissed the read-in the trial court consider purposes which on the (3) accepts the defendant convicted; defendant responsibility relating to the read-in for restitution charge. Judge suggested a trial Nettesheim colloquy engage personal the defendant in "a with added). Cleaves, (emphasis 2d at 80 181 Wis. added). (emphasis Id. at 79 n.l. Id. at 80 J., (Nettesheim, concurring). Id. at 80 Bangert"
under to establish that the defendant under- consequences stands these and to "additionally establish that the defendant understands accepts conditions, all these others which might apply." procedure, Judge according This *31 postconvic- Nettesheim, "can minimize the number of appeals challenging tion motions and a trial court's use charge. of a And, read-in even where such motion or appeal brought, judicial the resolution the of issue will often be facilitated."54 opinions merely
¶ 77. in Cleaves recom- mended that the trial courts ask defendants in the they admitting charge future whether are the read-in purposes sentencing. require for of Cleaves did not the require trial courts to do so. Cleaves did not also circuit courts to assume that defendants have admit- guilt purposes sentencing, ted of read-in of stating "may" instead that courts make such an as- sumption. Standing Austin, in contrast to cases such as
Gerard, Cleaves, Szarkowitz, of or all which describe procedure involving the read-in either an actual or a guilt, describing deemed admission of are cases procedure making without reference either guilt the defendant's actual admission or to a rule agree- that the circuit court deem the charge ment to read in the an admission that the committed read-in offense. State, 79. Martinkoski v. 51 Wis. 2d 186 (1971), N.W.2d a case in released the same term as provides example. "stipu Austin, one such Martinkoski reading-in charge agreed lated to the of' a State Id. J., (Nettesheim, at concurring). 80-81 prejudice.55 This court described to dismiss without charge's stipulating to the "consider- Martinkoski as exchange imposition for the of a sentence ation in the charge."56 agreement prosecute that state not to of the opinion not state that Martinko- The Martinkoski does charge guilt that he was the read-in ski admitted charge. guilt law as a matter of to admit deemed initially pled guilty Indeed Martinkoski and read in.57 Neither briefs dismissed that he admitted Martinkoski nor the decision state he deemed to have admitted or that was it as a matter of law. Embry State, 2d 174 N.W.2d In v. (1970), quoted Austin, the court case cited and considering
distinguished practice of other a trial court's procedure purposes from the offenses agreeing that trial court and the accused the state may *32 uncharged into consideration and take offenses prosecute prosecutor may at not those offenses a proce Embry the latter later The court described time. (the referring procedure) to the without dure agree admitting guilt asor the defendant's defendant as guilt constituting an admission of the read-in as ment to Embry stated, as instead as a matter of law. The only Martinkoski, a offense in the court did may and that the at is one that considered prosecuting The the future. State is barred from procedure opinion Embry fol describes the read-in lows:
55 State, 237, 248, 2d v. 51 Wis. 186 N.W.2d Martinkoski (1971).
56Martinkoski, 51 Wis. 2d at App. at 101-02. in Martinkoski See the State's brief procedure practice state,
[The read-in is] in this especially Milwaukee, charging of multiple of- fender with two or more offenses for which the evidence bringing judge's is most conclusive and attention to uncharged additional prior sentencing. offenses to Upon agreement accused, between the state and the judge take these into offenses consideration and the prosecution agrees prosecute. It expected uncharged crimes will influence length of the sentence for the crime or crimes the found guilty has been toor which he has plead guilty. advantage [sic] The technique of this the accused is that he can clean his slate several uncharged safety crimes only receiving with the at the most the maximum sentence on the one or two crimes of which he is convicted.58 After read-in procedure in the developed courts, Wisconsin the legislature inserted a definition of read-in crimes into the Wisconsin Statutes. In two years after the court of appeals mandated Cleaves (the latest of above), the decisions discussed a bill was introduced in the Wisconsin State Assembly that in- cluded a legislative definition of the phrase "read-in crime" for purposes criminal restitution statute. bill, Assembly Bill would have defined a "read-in crime" as a crime which the defendant guilt. admits actually Section bill provided relevant part as follows:
973.20(lg) of the statutes is created to read: 973.20(lg) In this section: *33 58 State, Embry 151, 157-58, v. 174 521 N.W.2d
(1970).
298 (b) uncharged, means crime that "Read-in crime" having committed and that admits to that the defendant sentencing at the time court considers for which the defendant was for the crime defendant convicted.59 to the Assem- addressed In memorandum De- the Wisconsin Assembly, Committee
bly Judiciary definition objected proposed to this of Justice partment to that it "would appear on the ground of "read-in crime" personally specifically that the defendant require it order to admit to the read-in offense transcrip- A for restitution."60 considered at Appendix is attached as ah tion of the memorandum that such argued of Justice Department hereto. The law on read-in "is with the requirement inconsistent decisions appeals' and that under offenses" Cleaves, so was proper Szarkowitz restitution The to the read-ins. agreed the defendant long a defini- supports memorandum Department of Justice dismissed read-in charges" allows tion of "read-in 59 added). 3, (emphasis § A.B. LRB-0353/1 on analysis appearing Bureau Legislative The Reference are crimes page "[r]ead-in further stated the bill's first they crimes that charged, but are crimes that are not sentenc- the court considers when defendant admits to and that ing defendant." codify intended analysis states that bill was also courts holding Szarkowitz that appeals'
the court of pay restitution require a convicted criminal Legislative Reference Analysis by the victim of a read-in crime. Bureau, A.B. LRB-0353/1. Department of Jus Correspondence/Memorandum: See tice, Drafting File 1995 Wis. Act Aug. 11, 1995, in Bill (available Bureau, 1 East Main Legislative Reference at Wis. Wis.). St., Madison, *34 considered for restitution and that dis-
penses language with the "admits" so that defendant's personal admission to the read-in is not re- quired; simply agree the defendant need that the be read in. Department
¶ 83. The of Justice memorandum proposed following the definition "read-in crime" in the restitution statute: any
"Read-in uncharged crime" means crime that is part plea which is dismissed as agreement, agrees by defendant to be considered at sen- court tencing and that the court considers at the time sentencing the defendant for the crime for which the defendant was convicted.
(Emphasis original.) Assembly Judiciary
¶ 84. The Committee evi- dently Department found the of Justice memorandum persuasive incorporated Department's to be proposed language nearly Assembly verbatim into provided Amendment l.61 The Amendment that a agrees read-in crime is a crime "that the defendant to be by sentencing."62 considered at the time of language Assembly ¶ 85. The Amendment 1 language ultimately statutory enacted as the defi- nition of "read-in crime" in the restitution statute. The statutory by definition of crime," "read-in enacted legislature in 1995 Wisconsin Act 141 and now set forth § 973.20(lg)(b), Stat. no makes reference to admission, sort of whether actual or deemed. Wisconsin § 973.20(lg)(b) Stat. defines "read-in crime" aas crime agrees by "that the to be considered the court 61Assembly Amendment Assembly 1 was offered Judiciary Committee.
62Assembly Amendment 1 to 1995 A.B. 467. statutory sentencing." The definition of at the time of purposes of restitution is as follows: crime for "read-in" *35 uncharged that or any crime" means crime "Read-in agreement, plea that the part is dismissed as of a that by agrees to considered the court at defendant sentencing at the and that the considers time of sentencing for crime for the defendant time convicted. the defendant was which Although requiring (or ¶ that a defendant 86. not guilt be deemed to have admit to a read-in charge) purposes guilt admitted sentencing, statutory of "read-in crime" definition accepting plea from not bar circuit court does agreement guilt involving admission of the defendant's charge. of a read-in ap- statutory
¶ definition "read-in crime" 87. pears statute, Wis. Stat. in the criminal restitution additionally incorporated by § reference 973.20, and is governing made to be victim statements into the statute (§ 972.14(3)) govern- sentencing and the statute before sentencing ing of, contact victims restrictions on with 972.049). (§ like statutes, in, or These co-actors crimes § 973.20(lg)(b) defining crime," do not at "read-in point that to a "read-in crime" a crime refer the defendant is deemed admits that defendant a as matter of law. have admitted Subsequent to the ¶ to Cleaves and legislature's statutory of a definition enactment necessarily been crime," has "read-in this court describing read-in offenses. consistent Floyd, example, 14, v. 2000 WI For in State Cleaves 155, 2d N.W.2d we cited 25, 767, 232 Wis. 606 "[r]ead-ins position support constitute
301 charges" (empha admissions the defendant to those added). sis Martel, In State v. 2003 70, 26, WI 262 appear 483, Wis. 2d 69, N.W.2d we to have described involving stating read-ins as an admission, actual purposes Szarkowitz held for of the restitution statute charges applied that read-in "admitted, crimes dis missed, and read-in at for the crime of added). (emphasis Similarly, conviction" in State v. Lackershire, ¶74, n.7, WI 23, 734 N.W.2d we "[w]hen cited Austin and stated that during sentencing, are read having admits to " underlying committed (emphasis crimes... added). ¶ 90. In Robinson Allis, v. West 126, WI ¶ 42, N.W.2d the court stated *36 "[r]ead-in charges historically that have served a lim although they preclusive ited function" and that have a barring prosecution effect of a State from future of the charges, charges read-in read-in "are not otherwise adjudications guilt."63 treated as of The Robinson court "[consideration further charges stated that of read-in during sentencing litigation is not tantamount to actual underlying sentencing performs of the issues. The "64 adjudication no of the read-in .... ¶ 91. In sum, the case law and the restitution suggest descriptions statute three different of the (1) procedure: read-in description Austin's and Gerard's procedure involving (though necessarily of a requir- not ing) the defendant's actual admission to the read-in
63The
quoted Austin,
Robinson court
purposes *37 Except in admit does fact a defendant ¶ when stating charge, guilt that a defendant a read-in charge purposes guilt" of sen- for a read-in "admits guide likely tencing than to confuse is more 65 Cleaves, 2d at 181 Wis.
303 decisions made a defendant or a court. It practice prosecuting is a better and defense counsel any and circuit courts to omit reference to a defendant admitting except crime, a read-in when the defendant guilt, simply recognize does admit that a agreement charge to read in a affects sen- tencing following may in the manner: a circuit court charge imposing consider the read-in when sentence penalty charged but the maximum offense will may require increased;66 a circuit court a defen- pay charges;67 dant to restitution on the read-in and a preclusive read-in has a in effect the State is prohibited prosecution from future of the read-in charge.68
¶ prosecuting 94. To avoid confusion, attor- neys, defense counsel, and circuit courts should hereaf- (as case) they ter avoid did in the instant the terminol- ogy referring "admit" or "deemed in admitted" to or explaining agreement charges. a defendant's read language
¶ 95. We withdraw in the case law that intimating be read as that when a is read in a defendant must admit or is deemed to admit sentencing purposes.
‡
‡ $
clearly
¶ 96. We conclude that the record
demon-
strates that
State,
neither the
nor trial
counsel,
defense
66 Austin,
(cited
approval
with
in Robin
decision of the court of appeals affirming circuit court's order denying the defendant's motion to with- guilty draw his plea.
theBy Court. —The decision of the court of appeals is affirmed. OF JUSTICE
COREESPOMDENCE/MEMORMIDDM DEPARTMENT Date: August Assembly Committee Judiciary
To: Cohn Andy
From: Executive Assistant
Subject: AB is following text a memo drafted our criminal attorneys departmental your you litigation listing concerns. Thank this
attention matter: Szarkowitz, AB could order an restitution attempt 2d (Ct. codify road-in App. offenses. 1990), decision which held State v. *40 While problem purpose there is no with the general of the problems statute there are some technical with the used language the regarding definition of read-in offenses. proposed statutory
The definition is: [A]ny crime uncharged, that is that the defendant admits to having committed and that the court considers at the time of the defendant for sentencing the crime for which the defendant was convicted. any First, as "read-in crime" is as defined crime that is practice it "uncharged" creates confusion in the light of normal of purposes dismissing charged offenses and in reading them for appear The sentencing. existing language would to exclude such restitution, offenses being from considered for or at least allow appeal. the Thus, to argument be raised on a the change in necessary accurately language would be to reflect the traditional procedure. read-in Second, any the statute also defines read-in crime as crime that the defendant "admits to having committed." This language appear require personally would to that the defendant and specifically admit to the read-in offense in order for to be it considered sentencing at for restitution. read-in. question offenses. crimes committed However, being is those szarkowitz, As stated only read this crimes." whether in in is at Szarkowitz, sentencing, inconsistent the Wis. Szarkowitz. defendant 2d at "When he 753. with agreed makes a Thus, defendant Wis. the an to admission where 2d the law on at agrees crimes defendant a 753. that read-in to being The the he
Matt Frank 1995 Page 2 August to
agrees the read-in he offenses is to have presumed admitted the charges. believe read-in raised offenses agreed court offenses. statute. in argument that the n.l. The case also to in State future that was issue the A stated the Cleaves, similar this held read-ins. improper ask defendant of whether v. is in that the Cleaves, purposes challenge the a restitution footnote defendant as better Cleaves, argued he a 181 Wis. 2d at can personal practice.'' did that that if sentencing 1B1 be was not there suggest "we expected 2d 73 wis. restitution proper admission personally 2d is Cleaves, (Ct. consideration. at as an to court the that App. admission the is on 181 Wis. admit rejected defendant required proposed However, trial 1993). the read-in to to courts 2d this new the had was the the We at In concern is that My if prosecutors and courts not do ask always a defendant to admit the even charges, if restitution is sought, not then a special effort have to be will made when restitution is this sought personal seek admission. This dual practice may in result some hand, needless confusion. On the other if a personal admission is desirable then the statute does not present a problem. However, as the colloquy suggested Cleaves is required this still result confusion as personal a admission, restitution, would be only required cases. It is only where exists, a standard practice as such requiring personal offenses, admission all that any possible confusion is eliminated. Some proposed language to deal with perceived the problems is as follows: "Read-in crime" means crime that is uncharged which part plea dismissed agreement, agrees defendant considered court at sentencing considers at time defendant crime for which was convicted. *41 DOJ should support the proposed bill the with suggested changes. First, allowing for dismissed charges to be considered for Second, restitution. to the change "admits" language that reflect a personal admission not required, opposed simply agreeing the be read-in. (concurring). BUTLER, JR., I 99. LOUIS B. J. majority's respectfully affirm- concur with the mandate denying ing mo- the circuit court's order Straszkowski's guilty plea. sepa- I However, tion rately his write to withdraw majority's ruling disagree I because with may "withdrawing] language in the case law charge intimating read as that when a is read a is deemed to admit the read-in defendant must admit or charge sentencing purposes." Majority op., ¶ I95. for majority's disagree related admonitions also with agree- that circuit courts "should not deem a defendant's charge at ment to have read for consideration sentencing and dismissed on the merits to be an admis- guilt purposes sen- sion of of the read-in attorneys, tencing," "prosecuting coun- and that defense sel, and circuit courts should hereafter avoid... referring terminology 'admit' or 'deemed admitted' agreement explaining a defendant's to read-in or charges." ¶¶ Id., 91, 93. acknowledge-
¶ 100. A defendant's admission or wrongdoing part of ment of is an essential process. If committed a crime has not a defendant who wrong, why acknowledged he or she did should what having with from dismissed defendant benefit prejudice? flip side, an criminal defen- On the innocent responsible not be held and accountable dant should someone else. conduct that have been committed I. petition for review in this 101. Straszkowski's single presented the trial court issue: whether case denying his motion to withdraw erred in Straszkowski's knowingly guilty plea plea on his assertion his was knowledge intelligently due to his lack of and regarding entered However, the effect of a read-in offense. majority a unilateral referen- has turned this case into *42 propriety acknowledging
dum on the the role of procedures, despite any party admissions in read-in having raised such an issue. This issue becomes the focus majority opinion, ultimately which undercuts the long-standing treating tradition of read-ins as admis- respectfully strongly sions under I Wisconsin law. but disagree majority opinion's analysis with the and conclu- sion.
A
procedure
¶ 102.
case,
The read-in
at issue in this
although unique Wisconsin,
is well-established within
process provides
this state. The read-in
a dual mecha
helping
of,
cases,
nism in some
through
make a victim whole
reasonably possible,
restitution to the extent
providing
sentencing judge
while in all cases
with
helpful information about the defendant's rehabilitative
Sweat,
needs. See
409, 422,
State v.
208 Wis. 2d
561
(1997).Agreeing
N.W.2d695
to have one's crimes read in
purposes
accepting
for such
anis
alternative method of
responsibility
punishment
for criminal conduct in lieu of
following
adjudication
a full
of the crime. See State v.
(Ct.
Szarkowitz,
740, 753,
read-in crimes considered
court is
973.20(lr),
§
requires
erned
Stat.
Wis.
which
all
explain
courts to either order restitution or
why
Borst,
no such order is issued. See State v.
181
(1993);1
118, 122,
Wis. 2d
Wisconsin that
by
to have one's
considered
sentencing
through
procedure
a read-in
charges, the
constitutes an admission to those
agreement
read-in
only
step
process.
in
is
the first
The next
sentencing
step
un
is that a
court considers those
charged
along
proven
unproven
crimes,
with other
or
sentencing
"[i]n
purposes:
deter
offenses, for limited
mining the character of the defendant and the need for
rehabilitation,
his incarceration and
the court must
consider whether the crime is an isolated act or
pattern
McQuay,
of conduct." State v.
154 Wis. 2d
(1990).
State, 49
126, 452 N.W.2d377
See also Austin v.
Embry
727, 729-30, 183
2d
N.W.2d56
Wis.
(1970);
State,
151, 157, 174
521
v.
N.W.2d
imposing
right,
sentence,
to hear
Annot., Court's
by
consider,
other
committed
of,
evidence
offenses
(1964)).
"[e]vidence
purpose compensate victims, is to of restitution punish required defendants, are courts "to construe the 'broadly liberally in restitution statute order to allow victims to recover their losses as a result of a Madlock, criminal v. conduct.'" State (Ct. 1999)(cita- App. 324, 332, 2d N.W.2d omitted). Although fully tion read-in crimes are not adjudicated, plain text of Wisconsin's criminal res that a titution statute indicates *44 pay for his her ordered to restitution read-in crimes sentencing" which were "considered at knowledged where that ac compensable criminal conduct resulted in injury (discussing ¶¶ infra, to the victim. See 107-110 (lr)). § 973.20(lg)(a), (lg)(b), Stat. it is at such, As point the of a court's restitution deliberations that acknowledgement of that criminal conduct takes on a significant rendering integral part role, admissions an process. of the read-in and restitution B majority ¶ 107. The focuses on the definition of "read-in crime"2in our state's criminal restitution stat- § 973.20(lg)(b), addressing ute, Wis. Stat. without how majority crime," offense," refers to "read-in "read-in charge" interchangeably. Majority and "read-in op., 58 n.33. intent, terminology fairly legislature's Such does not reflect crime," choosing phrase clarify subject "read-in agreement just "charge" typed of a defendant's read-in is not is the actual criminal conduct form, out on a but agrees which the defendant to have considered together that definition functions with the substantive provisions By interpreting of the statute. subsection (lg)(b)'s definition of "read-in crime" without reference statutory provisions describing to related the substan- acknowledgments tive function of read-in in the resti- process, majority tution fails to heed the rule that "[w]hen construing statutory provision, the entire section and related sections of the statute should be considered," Sweat, 208 Wis. 2d at and conse- quently point § misses much of the of 973.20. many pertinent provisions 108. There are § including immediately 973.20,
Wis. Stat. those both preceding following (lg)(b)'s subsection majority definition, that the fails consider, and which acknowledgement illustrate nature of a read-in as example, immediately an admission. For the subsection preceding the read-in definition defines a "crime consid- sentencing" "any ered at crime for which the defen- any dant was convicted and crime." added). (lr) § 973.20(lg)(a) (emphasis Subsection then provides explicit link between read-ins and restitu- mandating tion, that: imposing
[w]hen ordering probation sentence or any court, crime ... pen- addition to other alty by law, authorized shall order the defendant make partial full or restitution under this section to *45 a crime any sentencing considered at [i.e., victim including read-in (lg)(a)] crimes. See subsection ... unless the court finds substantial reason not to do so and states the reason. added.)
(Emphasis proceeds The statute then to de- procedural requirements issuing scribe the restitu- sentencing limited See 1995 Wis. Act purposes. and restitution 141; (5)(a). § 973.20(lg)(b), Wis. Stat. (lg)(a), mandatory including of such consideration
tion, by any as victim of loss suffered the "amount factors as sentencing." Stat. at crime considered a result of a (5)(a) added). 973.20(13)(a)l. (emphasis § Subsection provides: further
(5) require case, order the restitution In following: one or more do the defendant (a) damages, general not damages, but Pay special all record, which could be in the by evidence substantiated for his against the defendant action recovered a civil considered a crime commission conduct or her sentencing. at added.) (Emphasis description actions of a defendant's This acknowledged
being in the com- his or her conduct having by their been virtue of a crime mission of sentencing of a the nature illustrates at considered agreement is inconsistent It as an admission. language plain of this and the common sense with both requires, majority's approach conclude, as the statute agreement have a a defendant's of a in the commission her" "conduct "his or consider implicit necessarily admis- include an crime" does by actu- the defendant criminal conduct that such sion ally clear; a criminal for this is The reason existed. responsible and account- held should not be else. Such a someone conduct committed able for allowing practical ruling effect have would perpetrate other of- remain free to criminals to reed unwitting public. fenses on may appear of deemed admissions 110. The role relatively insignificant cases such as in read-in to be and an not ordered restitution was this one where remaining required for the was not therefore admission *46 sentencing However, considerations. a defendant's ad- part pertinent process long is a mission of the read-in 973.20(lr)'s § as Wis. Stat. mandate, restitution which applies pending cases, to all read-in remains in a case. may § requires Before restitution be ordered, 973.20 that:
a causal nexus must be established the between "crime sentencing," 973.20(2), § considered at Wis. Stat. disputed damage. causation, In proving a victim must show that activity criminal was a defendant's in causing damage. "substantial factor" .. .
As contemplated statute, the restitution "crime at sentencing" considered is defined broad terms.... court should consider the defendant's "entire course of conduct." (citations omitted) Canady, ¶¶ 261, 9-10 (emphasis added); App Johnson, see also State v. 2005 WI (describing 13, 2dWis. 704 N.W.2d625 proof required ordering substantial factor restitution ways, including description "[p]ut in various way, purposes another link a causal for restitution established when 'the defendant's criminal act set into damage injury'"). motion events that resulted language There is no in the restitution statute distin guishing read-in crimes from other "crimes considered at way, sentencing." Either a nexus must be drawn between consistently injury the victim's and what is described as criminal conduct.3 provisions These any suggestion majority answer from the deemed be too admission fictitious nature to serve proper foundation for restitution. As these additional statu provisions illustrate, tory agreement only is> the first 973.20; step process § in the subsequent steps under Wis. Stat. require proof, e.g., additional admissions or a nexus between *47 § 973.20(lg)(b)'s
¶ definition 111. Wis. Stat. Once considered, in but is not isolation of "read-in crimes" language, surrounding statutory together a this with clearly § plain reading full indi- 973.20 in its context of agrees by agreeing read-in, to a a defendant to cates that at sentenc- his or her criminal conduct considered have just ing, devoid such context words, have some to by meaning, It clear read out loud a court. is further agreement that his or her criminal that a defendant's logically an is considered must entail conduct to be by implicit the defendant that such criminal admission by defendant exists. conduct the correctly Although appeals ¶ the ob 112. Cleaves, 73, 80, 2d 510 N.W.2d served State v. 181 Wis. (Ct. 1993), App. are not 143 that courts every express an with mandated to obtain admission suggested preferred practice in, a for read the court clarifying suggest purposes the "we that trial record: is ask defendant if there an courts the future purposes of sentenc admission to the ing Id. at consideration." n.l. agree that the I with the Cleaves court best
practice
on
such clarification to
obtained
attorney
by
record,
the defendant's
or
either
clarify
It is
that the defendant has
court.
sufficient
acknowledgment
his or her
of read-in
been informed that
be taken
an admission.4
injury,
and of
the defendant's criminal conduct and
victim’s
State,
2d
the restitution amount. See also Garski v.
75 Wis.
Gerard,
(1977);
2d
scribes the legislature's intent to codify which the Memorandum describes as affirming that "where a defendant the agrees to read-in offenses he is have presumed to admitted the DOJ charges." Memo- 753). Szarkowitz, randum at 1-2 at (citing Furthermore, the Memorandum not concludes only a definition of recommending specific crimes, "read-in" but it also that the explains purpose proposed they understand the nature and consequences agreements the in opening preamble make court. The of our Rules of Professional Attorneys, 20, emphasizes Conduct for SCR ch. the fundamental principle responsibility primary attorney that a of an is that of an "provided advisor who must a client with an informed under- standing their See also practical implications." SCR of the client's 20:1.4(b)("A legal rights lawyer SCR ch. shall and 20 Preamble at obligations explain a matter to the [2] explainQ (2007). reasonably necessary extent the permit to client to make in- formed regarding representation."). Notably, decisions allege Straszkowski not does a violation of these rules or ineffec- tive assistance of counsel in this case. File, Drafting Correspondence/ 1995 Wis. Act Memo (hereinafter
randum, Department Justice, August 11, "Memorandum"), "DOJ Legislative Memorandum" or Reference Bureau, Madison, Wis.
statutory avail- was to make restitution amendments at Memorandum 1-2. able read-in crimes.6 DOJ for acknowledge any language majority of this does not affirming relationship be- Memorandum from the and restitution. tween read-in admissions majority the DOJ Memo- does describe 116. The grounds citing as as and Cleaves randum Szarkowitz legislative language objecting proposed that would to required to admit to a offense have personally a defendant Majority specifically. op., ¶ However, acknowledge rejecting majority fails to suggestion confusing personal as too admission Cleaves' types light of read-in cases that in require of the different (or all), varying degrees not at admissions to legislature's expressly in- Memorandum describes codify Specifically, the Memoran- tent to Szarkowitz. processes arising from dual dum the confusion warns special personal to seek in which efforts must be made personal only restitution cases where admissions required. confusion, To ward off such admissions are go recommends that rather than the Memorandum requiring personal either admission extreme entirely, every ignoring case or the need admissions change legislation "the the restitution be drafted personal language 'admits' to reflect that admission simply agreeing required, opposed *49 (emphasis charges DOJ Memorandum at read-in." added). practice appropri- Thus, establish a standard to proposes scenarios, ate the Memorandum for various support should the The Memorandum concludes: "DOJ First, suggested changes. allowing for proposed bill with the charges considered for restitution. dismissed read-in to be Second, change language the 'admits' to reflect agree personal required, opposed simply admission is ing DOJ Memorandum that the be read-in." at eventually by legislature: the solution enacted the adoption statutory language comparable to but less stringent personal requirements, than actual admission statutory language defining i.e., part a read-in crime in "agrees as a "crime" that the defendant to" for limited purposes, thereby codifying Szarkowitz's deemed ad- approach mission to read-in crimes. Id. at 1-2. legislature, following 117. The recom- DOJ's similarly concept mendations, embraced the of deemed admissions, as evident in the text of the amended statutory language By including read in its full context. agreement within the definition of "read-in crime" the of a uncharged defendant to have his or her or dis- missed poses, pur- crimes considered for limited language § 973.20(lg)(b) this of Wis. Stat. complements (5)(a), subsection which describes the paid by corresponding restitution defendants as with "his or her conduct in the commission of a crime." As previously agreement discussed, a defendant's to have [criminal] the court consider "his or her conduct" under § logically Wis. Stat. 973.20, whole, read as a entails a acknowledgement of the existence of his or her statutory criminal conduct. In manner, this language suggested by the Memorandum and embraced legislature preserves important our role assumed generally play admissions cases, restitution while alleviating separate personal the need for admissions in every case. majority recognizes 118. To the extent the legislature adopted the DOJ Memorandum,
majority legislature's should defer to intent codify by spelling relationship Szarkowitz out the be- by describing tween read-in crimes and restitution and agreements implicit, the read-in press, in terms of not ex- majority admissions. The does Rather, not do so. *50 majority the text of Wis. Stat. the contends that because § 973.20(lg)(b)'s not crime" does definition "read-in reading "admission," then that statute use the word subsequent together "the cases" leads Austin and with procedure read-in conclusion that Wisconsin's the requires admissions, nor a circuit even allows neither a such an admission from defendant's court to deem agreement sen- to have read-in considered at Majority op., tencing. ¶¶ 91-92. only majority's approach Not does the process pertinent to take into account
the read-in fail authority statutory case to the relation- and law related ships among admissions, but read-ins, restitution, and problem recognize the actual it also fails to which remedy through legislature DOJ intended to and statutory DOJ "read-in crime" definition. The new no substantive concerns with Memorandum exhibits concept rather admissions, of deemed but addresses procedural problems appli- to inconsistent related requirements in due admission read-in cases cations of diminished to a need for admissions cases where The restitution is ordered. Memorandum resolves problem among procedural created variation types corresponding read-in admission cases requirements by implementing standard definition acknowledged as read-in crimes crimes purposes requiring explicit without more consideration every admissions read-in case.
D
majority
Austin
the first
describes
as
extensively describing
proce-
case
Wisconsin
op.,
growing
Majority
¶ 59. Austin describes a
dures.
addressing
appeals
procedure,
number
proceeds
engage
it
what
describes
*51
Austin,
those
[The read-in a is] this especially Milwaukee, charging multiple of- fender with two or more offenses for which the evidence bringing judge's is most conclusive and attention to uncharged prior additional sentencing. offenses Upon agreement accused, between the state and the judge may take these offenses into consideration prosecution agrees and the to prosecute. not It is expected uncharged crimes will influence the length of the sentence for the crime or crimes the guilty defendant has been found of or to which he has plead guilty. advantage technique this to the accused is that he can clean his slate of several un- charged safety only crimes with the receiving at the most maximum sentence on the one or two crimes of which he is convicted.
Austin,
to allow the
to consider
offenses so
that,
attempt
prosecute him,
should the state later
successfully
he could
assert
the defense of double
[Ujnder
cannot],
jeopardy....
agreement
judge
[a
this
circumstances,
under
him
proven
sentence
for the
longer
permitted by
crimes to a term
than that
statute.
(1969).
Smith,
State v.
39, 42, 172
N.W.2d 18
121. Austin also identifies Wisconsin's read-in
as akin to the
procedure
long-standing English practice
"taking
into account"
offenses at
uncharged
accused,
of the
request
issuing
while
conviction
(read-in)
Austin,
for such
offenses.
Stat. 973.20 illustrate that it is because a defendant pays injuries arising restitution for those from "his or her conduct in the commission of a crime" that some acknowledgement usually sort of of those crimes must prior Perhaps being overly be made to restitution.8 on focused the case before it which does not involve a majority order,9 restitution suffers from a bad case prevents seeing of tunnel vision which it from important generally play role admissions in read-in statutorily required cases as a result of restitution considerations. 7 Thus, cases, play admissions a dual role in read-in which
(1) always general grounds must establish for restitution in the acknowledgment form of a court's (i.e., consideration of his or her criminal conduct the criminal in), engaged conduct the defendant which courts deem to *53 equivalent be the of an admission for sentencing and restitution (2) cases; purposes; only example some where the clearly amount, record alone does not establish the restitution require express personal a more grounds admission of the amount restitution. and/or 973.20(5)(a); Johnson, § See Wis. Stat. State v. 2005 WI 201, 13, 381, App 625; 2d 287 Wis. 704 N.W.2d State v. ¶ 87, 9, Canady, App 2000 WI 2dWis. 610 N.W.2d147. ¶ majority's if problem This would not be a decision presented by case, on the focused narrow issues this rather than issuing sweeping ruling cases, a that affects all read-in and most detrimentally affecting involving those restitution orders. majority on an Furthermore, relies 125.
alleged Austin and other cases to conflict between justify curtailing in the read-in the role of admissions process. Majority op., ¶¶ However, 88-92. majority's appears perception to be of such a conflict misinterpretation generally of Austin as based on a requiring explicit personal from read-in admissions recognize defendants, unlike other cases which through the read-in ac- admissions be deemed knowledgement. Contrary majority's suggestions, to the 126. any language requiring not contain either a
Austin does
precluding
personal
deemed admissions.
admission or
charges synonymously
Rather,
read-in
Austin describes
charges, explaining
"admitted"
that under our
with
any
procedures,
plead
a defendant "does not
charges and
sentenced on
therefore
uncharged
but such admitted
offenses
charged
him on the
of-
are considered
added).
(emphasis
Austin,
In
fense."
¶ 128. Cleaves further that this agreements deeming is a admissions from read-in *54 deeming amounts from restitution extension of natural high- object to them. Cleaves failure to a defendant's following passage lights Szarkowitz which from the ability parallels explains to as- a court's between objected admitted, to are crimes not sume that read-in ability corresponding that restitution to assume similarly its objected admitted: to are amounts not 973.20(13)(c) "stipulate" sec. The use of the word of a formal written imply requirement a does not defendant, as to the amount signed stipulation, that, claimed. hold the absence of restitution We on a court-ordered objection claimed any to amounts in- presentence summary accompanying restitution given has been notice of vestigation, where a defendant summary, court report and the trial contents of that understanding that on the proceed is entitled to so order restitu- dispute, is not in claimed amount 973.20(13)(c). sec. tion under explains, Szarkowitz, As Cleaves 2d at 749. assumptions reasoning applies" to deemed "the same "[i]n through which, the absence read-in, being objection in, read to the crimes purposes admits them for that the defendant assume sentencing." being Cleaves, at at considered parallel clearly describe the These cases objections relationship at the admissions and between hearing stage the restitution and at initial object stage, read-in crimes to either with failure sufficing potentially as a deemed restitution amounts case, or the restitu- crime, in the one admission majority main- However, in the other. tion amount contrary interpretation of Cleaves' to the that, tains DOJ's) (and description Austin, describes Austin requiring process must that a defendant the read-in *55 express during make an additional admission the process, beyond merely agreeing to have the Majority op., ¶ read-in crimes considered. 66. majority acknowledge ¶ 130. The does that Aus open possibility interpret tin leaves that, as cases ing explained, Austin have a defendant's admission agreement be deemed from the defendant's to have Majority op., ¶ considered. 72. How majority rejects interpretation, ever, the also con cluding description agreements that Austin's of read-in referring only in terms of admissions must have been to express, not assumed, Austin, admissions because (Pulaski by decision State, cited Austin v. 23 Wis. 2d (1964)), 138, 126 N.W.2d625 and another read-in case 611) (Gerard, we have discussed contained procedural mentioning histories actual admissions Majority op., ¶¶ defendants. 63-67, Therefore, 91-92. majority appears holding conclude, Austin's must only particular have been as broad as the facts of that general description procedures case; Austin's of read-in could not have been so inclusive as to allow admissions encompassed implicitly through to be the read-in ac- knowledgement majority op., itself other cases. See ¶¶ 63-67, 91-92. description
¶
describing
In its
of Austin as
majority
actual,
deemed,
admissions, the
also fo-
passage
describing
cuses on a
in Szarkowitz
Austin as
holding
agrees
being
that "when a defendant
to crimes
sentencing,
read in at the time of
he makes an admis-
Majority op.,
sion that he committed those crimes."
753).
(quoting
Szarkowitz,
2d at
majority offers that this sentence is not clear on its face
potentially
interpreted
referring
but can
as
either to
implicit
express
Majority op.,
an
or an
admission.
passage
Szarkowitz,
as the
as well
from
132. This
language
original
more clear than
Austin, is much
require
type
majority
and does not
contends
majority
express
separate
First,
describes.
admission
explic-
previously described,
Memorandum, as
DOJ
the
itly explains
codify
legislature's
intent
that it was the
holding,
describes
the Memorandum
which
Szarkowitz's
agrees
clarifying
part
a defendant
that "where
presumed
to have admitted
offenses he is
the read-in
(citing Szarkowitz,
charges."
1-2
at
DOJ Memorandum
*56
753).
at
language
is clear
the
in Szarkowitz
Second,
agrees
a defendant
The statement that when
on its face.
descrip-
purely
is
"he makes an admission"
to read-in
proscrip-
language.
proscriptive,
If
had the
it
tive, not
describing
majority,
meaning urged by
i.e.,
the
tive
during
process as
the read-in
must do
a defendant
what
agreement
describing
opposed
as itself
a read-in
being
have stated
admission, Szarkowitz would
an
agrees
read-in, he
to have
a defendant
when
guilt.
explicit
an
admission
must also make
simply
such
does not contain
134. Szarkowitz
identifying
legislative
language.
intent of
After
Assembly
Szarkowitz, codification
Bill 467
explains:
aptly
Memorandum
DOJ
Szarkowitz,
agrees to
a defendant
"When
As stated
makes an
sentencing,
he
being read
at
the crimes
crimes." Szarkow-
he committed those
admission that
itz,
only
whether
question
2d at 753. The
157 Wis.
Szarkow-
being
crimes
read-in.
agreed to the
defendant
Thus,
agrees
itz,
where a
2d at 753.
157 Wis.
have admitted
presumed
he is
to the
offenses
charges.
added).
(emphasis
1-2
Memorandum at
DOJ
Similarly, nothing
¶ 135.
in Austin contradicts
complementary holdings
of later cases such as
Cleaves, Garski,
Szarkowitz,
which illustrate
read-in cases, a court
deem defendant to have
agrees
admitted his or her crimes when the defendant
to have those read-in crimes considered for limited
purposes.
majority's
and restitution
interpretation
might
persuasive
ofAustin
be more
if the
majority were correct that Austin was this court's first
extensively describing
pro-
decision
Wisconsin's read-in
specified
setting
cedure, and if Austin also
that it was
procedure
requires
personal
forth a read-in
which
an
separate
agreement
admission
from the
to have one's
by sentencing
read-in crimes considered
court. How-
description
ever, Austin contains neither the first
procedure
any language requir-
Wisconsin's read-in
nor
ing
explicit
guilt beyond
an additional
admission of
agreement to have one's crimes read-in and considered.
implicitly
136. Nor should Austin be read as
requiring
explicit
merely
such
admissions
because the
background
happened
facts of Austin
to include an
explicitly
actual admission. Austin itself
states that
"[u]nder
*57
procedure,
our the defendant does not
plead
any charges,"
proce-
to
and describes the read-in
by quoting Embry,
dure
which
does
describe a
personal
requirement. Austin,
admission
328 crimes, a of read-in consideration court's admitting those to crimes. be assumed to majority acknowledges ¶ that recent 138. The involving procedure the read-in as cases have described majority op., See deemed or actual admissions. either (citing ¶ ¶ Lackershire, n.7, 74, v. 2007 WI 27 89 State Martel, 23; 2d v. 2003 418, Wis. 734 N.W.2d State 301 ¶ v. 70, 26, 483, 69; 2d 664 N.W.2d State WI 262 Wis. Floyd, ¶ 25, 767, WI 2d 606 N.W.2d 14, Wis. 155). majority's subsequent description However, of being other, in each to the these cases as conflict with question practice point calling into the entire agreements, deeming from is unfor- admissions tunately overstated.
¶ three describes Rather, each these cases Floyd explicitly read- as admissions. describes read-ins by majority acknowledges in as the terms, ins such Floyd's language quoting "read-ins ad- that constitute by charges." Majority to the defendant those missions 25). (quoting Floyd, op., 767, 2d As acknowledges, similarly majority Lackershire further "[wjhen during sentenc- are read states having ing, admits committed the the defendant language underlying (quoting in Lacker- crimes." Id. nearly shire, iden- n.7, 301 Wis. which 2d language). deemed admission See. tical Szarkowitz's (discussing language supra, Szarkowitz, ¶¶ 35-38 agrees 2d at that "when a defendant 157 Wis. sentencing, being he read at the time crimes crimes"). an that he committed those makes admission majority passage Martel, from the in a omitted Even holding similarly opinion, describes Austin read in are admitted that are dismissed and "offenses purposes of consideration at sentenc- the defendant for *58 ing on the crimes or crimes for which the defendant is (emphasis Martel, convicted." added). ¶ 483, Wis. 2d ¶ attempt identify 140. In another conflict among majority cases, cites Robinson v. Allis, West 126, 2000 WI 42, 239 Wis. 2d holding N.W.2d and describes that case as adjudications read-ins "are not otherwise treated as guilt." Majority op., ¶ Robinson, however, is not Adjudication inconsistent with the other read-in cases. guilt thing voluntary is not the same as a admission purposes. of one's criminal conduct for read-in majority ultimately 141. The concludes that the confusing role of admissions in read-in cases is too attorneys allow courts and to even mention admission procedures. in reference to read-in However, while claiming such an irreconcilable conflict exists, the ma- jority point single has failed to to a case that holds that personal expressly required; admissions are that holds agreements that read-in are not deemed admissions; or any way implies type that no of admission, express implicit, required either or in the read-in process, majority as the concludes. every It be true that not read-in case exactly way,
discusses read-in admissions in the same largely varying degree because of the to which restitu- may may given tion not be considered in a case. For example, Cleaves and Szarkowitz both involved actual making necessary orders, restitution it more for the spell decisions those cases to out the exact nature of required prerequisite the admission as a in such cases. In Austin, cases such as in contrast, where restitution was issue, not at the role of admissions was not as pertinent. In necessary those cases, it was not therefore spell specificity. out with as much *59 consistently in described our stat- isWhat history legislative however, is law, case that utes, and degree part are to cases, some all read-in admissions statutory process. Furthermore, those cases and of addressing specifically provisions it restitution make by acknowledging that one's criminal conduct clear that required purposes, for read-in as be considered admitting restitution, is that such a read-in defendant criminal conduct exists. Consequently, by
¶ 144. I am not troubled some discussing of deemed read-in admis- the role decisions considering explicitly others, fact more sions than orders. I not all cases involve restitution also that any accept legislature's our chosen without trouble variety path through a that of such accommodation grants flexibility necessary courts types of cases with cor- accommodate different require- degrees respondingly different admission purposes. ments restitution majority, hand, seems 145. The on other surprisingly by among cases, the variation troubled overwhelmingly principles apply the same broad which any area of facts, different as standard sets majority recognize that the law. The does emphasis largely and one of variation in read-in cases is backgrounds; are different factual cases consistent acknowledgements recognition in their of read-in conduct, criminal as described admissions of one's § Stat. 973.20. focusing By and instead on isolated cases statutory language context, full read out their majority appears missed the critical role have responsibility accountability acceptance of criminal and procedure. history play in of the read-in Our state purpose procedures for the did not establish read-in creating just negotiation chip bargaining another contrary, tool for legislature case settlement. To the our explicitly part has described read-in as of the restitution process, consequently, allowing a method of defen- compensate acknowledged dants to victims for criminal having fully adjudicated. conduct without those crimes 973.20(5)(a) especially § See (specifying Wis. Stat. may require pay special restitution orders damages a defendant to "against that could be recovered a civil action *60 the defendant his or her conduct in the commission of for added). sentencing")(emphasis crime considered at just important principle This is general an for purposes ensuring justice, constitutional it but is a policy legislature explicitly endorsed, and which by therefore should not be undermined this court. hH why I disagree have set forth the reasons I majority's analysis. with I now return to the reason agree I majority's I concur: with the conclusion that Straszkowski has failed to demonstrate manifest injustice resulting from the circuit court's refusal to let plea. him withdraw his argues
¶ 148. Straszkowski
that under either a
Bangert
Nelson/Bentley analysis,
plea
or a
his
was not
knowingly
intelligently
entered because the circuit
notify
court failed to
him of the effects of the read-in
during
plea bargain.
offense
majority
op.,
See also
Bentley,
30; State v.
201
303,
Wis. 2d
that it was not informing awarding addition, In restitution. sion or not in- deemed is admissions defendant forming rather a "effect," but is of an a defendant granting general precondition description res- of a agreeing to read-in The actual effects titution. explained clearly to, as and consented were questionnaire by plea and waiver evidenced indicating signed by rights that he Straszkowski, form part any charges of a read-in as if are "that understood following they plea agreement effects," fol- have the ways description which an accurate lowed sentencing, charges may restitution affect correctly prosecution. State Furthermore, as the future points simply "[i]t that Straszkowski out, not credible in commit- his conduct court could take knew that the ting at consideration assault into the read-in sexual guilt sentencing, his for that assume in other words *61 know] [while that time did not offense, at the same guilt agreeing admission of involved an to a read-in that offense." respect parallels with
¶ Garski 150. This case case courts in each the circuit of whether the issue of their about the effect defendants failed to inform argues the that case, In this Straszkowski read-ins. informing deem him it could in not erred circuit court sentencing. Garski, In admitted at his similarly argued trial court that the had the See it order restitution. him that could never informed Citing Austin, this court Garski, 2d at 75. 75 Wis. defendants of advise that courts Garski did recommend "including judge may read-ins, effect of take these offenses into consideration when sentenc- ing," but this court also concluded that the information given being to the defendant sufficient, had been there requirement explain no additional that courts to offend- prior accepting pleas ers that restitution imposed. at Id. 76-77. case, In this Straszkowski received more
information about effects of read-ins than defen- conceding Garski, dant in even he was told that he could pay be ordered to restitution for the read-in If crime. under Garski we concluded that less information was adequate, given the information to Straszkowski in this case, which described the effects of read-in in the context adequate restitution, was as well.
¶ 152. As such, error in this case was harm 805.18(2), § less. Under Wis. Stat. we will not reverse judgment of a circuit court unless an examination of the record reveals that the not harmless, error was but rights. had affected the defendant's substantial We determine whether there has been harmless error looking totality at the of the circumstances. State v. Harris, ¶ 15, 48, 555, WI 2d 745 N.W.2d previously applied 397. We have the harmless error test requests guilty pleas, to review denied to withdraw explaining cases, such the standard is whether alleged "sufficiently error undermines the court's judicial proceeding." confidence the outcome of (citing id., Harris, ¶¶ See State v. 27, WI 737). 30-31, 33, 34, 680 N.W.2d HHHH majority's sum, In I concur with the denying affirmation of the circuit court's order guilty plea, Straszkowski's motion to withdraw his due to *62 any prejudicial error failure to establish Straszkowski's injustice resulting circuit court's from the or manifest request. plea I However, his withdrawal denial of majority's strongly disagree statement and with analysis deem a that circuit courts "should not related charge agreement in read for have sentencing and dismissed on the merits consideration at charge guilt for an admission of to be attorneys, sentencing," "prosecuting purposes of and that hereafter counsel, and circuit courts should defense terminology 'admit' or 'deemed admitted' avoid ... the referring agreement explaining a defendant's to or charges." Majority op., ¶¶ 92, 94. strongly disagree respectfully ¶ 154. I also but language "withdraw[s] majority's ruling with the intimating may that when the case be read as law or is deemed is in a defendant must admit read sentencing purposes." to admit the read-in history Majority op., ¶ read-in law 95. The Wisconsin recognition by three all branches reflects a consistent by government represented courts, the our our state — Department legislature, Justice, have all and the who agreement weighed an to have in on this issue—that may interpreted as an admission one's crimes read majority's opinion It unclear how the of those crimes. pre- longstanding traditions and will affect our state's procedures. end, In the to read-in cedents related legislative by man- however, remain constrained we clearly § describe 973.20 which dates of Wis. Stat. payment his or in terms of a defendant's restitution necessarily conduct, the defendant her criminal which agreeing acknowledges virtue defendant, A her crimes. consideration of his or court's quite simply, agree in the that his or her conduct cannot without be considered commission of a crime *63 (and clearly implying thereby implicitly admitting) that place. majority, such conduct existed in the first unfortunately, distinction, insists on such a semantic contrary statutory Wisconsin's case law to date. message
¶ 155. should We not send the to victims injured pay that those who monetarily them can their off crimes acknowledging responsibility without ever system for their It actions. would be anathema to our justice truth-seeking requirement to eliminate the person proven guilty acknowledge either be paying one's criminal conduct before a victim restitu- tion for that crime. foregoing respectfully For reasons, I
concur. I am authorized to state that Justice AN- joins NETTE KINGSLAND ZIEGLER this concur- rence.